The Case That Could Refine the 2nd Amendment

Adrees Latif / Reuters

Last Friday, the powerful United States Court of Appeals for the District of Columbia Circuit issued a decision evaluating the constitutionality of a 10-part gun control law. Two of the three judges upheld six parts of the law while a dissenting judge would have upheld all 10. The most important provision that was struck down limited the number of handguns a resident could register to one per month.

The judges basically held that the Second Amendment cannot tolerate any limitation on the number of firearms Americans are allowed to possess.

Although it may sound surprising, gun-control organizations and those in favor of gun-reform legislation should use all efforts to convince the Supreme Court to review this case. Although such groups have been hesitant to bring the Second Amendment back to the Roberts Court, this essay explains why they should change their strategy.

Professor Mark Tushnet of Harvard Law School once said that a reasonably good way to predict Supreme Court opinions is to imagine the holding of the case as a front-page New York Times or Wall Street Journal headline. If you can’t do so, or if it is difficult, then it is likely the Court won’t issue that kind of decision.

In light of all of the gun tragedies that have been in the news over the last few years, and tragically are likely to be in the news for the foreseeable future, will we see this headline anytime soon: “Supreme Court Justices strike down gun reform law?” I don’t think so.

The Supreme Court has only twice in its history overturned a law under the Second Amendment and both cases (District of Columbia v. Heller and McDonald v. City of Chicago) involved complete bans on the possession of handguns. Since 2010, the court has not taken a Second Amendment case though it has had plenty of opportunities to do so. For example, on the same day in 2014, the court refused to review three gun cases involving laws pertaining to the selling of guns to consumers across state lines and a Texas law prohibiting 18- to 20-year-olds from carrying guns in public. The justices have also declined cases upholding strict permitting procedures making it difficult for many people to carry guns in public in Maryland, New York, and New Jersey.

The National Rifle Association and other organizations hostile to gun control have been trying to get issues like these before the court for five years to no avail. Groups dedicated to stricter gun laws, conversely, have largely been silent on whether the court should grant the petitions for review.

It’s understandable why gun-control advocates would be fearful of the current Supreme Court once again reviewing a Second Amendment case. The five conservatives who stuck down the District of Columbia’s handgun ban in the Heller decision in 2008 and Chicago’s ban in the McDonald case in 2010 are still on the court. Moreover, on other hot button issues like voting rights and campaign finance reform, the Roberts Court has moved far to the right of the Rehnquist Court.

On the other hand, neither Justice Roberts nor Justice Kennedy (the two likely swing votes) seems to have a strong passion for the Second Amendment as opposed to Roberts’s history with voting rights and Kennedy’s views on campaign finance reform. Justice Roberts wrote about his distaste for the Voting Rights Act as early as 1981 when he was a young lawyer working for Ronald Reagan, and Justice Kennedy has been a consistently staunch opponent of campaign finance reform since he was appointed to the court in 1988. Neither has any similar history with the Second Amendment, and neither authored a separate opinion in the court’s two prior gun cases.

There is also a solid states’ rights argument that may well appeal to Justice Kennedy’s federalism instincts. What kind of gun control is needed in New York, Los Angeles or Chicago is obviously different than what is needed in Montana, Hawaii, or south Georgia. Moreover, over 40 states have their own constitutional provisions protecting their citizens’ right to bear arms. Kennedy may well be sympathetic to the claim that there isn’t a strong reason to overlay constitutionally imposed national rules on top of those local protections and, in fact, doing so is inconsistent with state autonomy. Professor Adam Winkler, one of the country’s leading experts on the Second Amendment, has said that it is possible Justice Kennedy’s vote may well be up for grabs in the next Second Amendment case.

Plus, Heller and McDonald were decided during a different time period—when mass gun shootings were not as prominent in the news as they are now. In the wake of these incidents, as well as polls showing that approximately 50 percent of Americans favor stricter gun laws while only 14 percent want less strict laws, would the court really make it easier for people to buy or possess guns?

Even in Heller, the five conservatives explicitly reaffirmed that laws dealing with who may own not guns (like felons and the mentally ill) and places where guns cannot be possessed (such as public buildings and schools) were fully constitutional.

Should gun-control advocates take the risk? The benefits of a favorable Supreme Court decision on gun control would be many. Right now towns, cities, and states who are considering more-stringent gun laws know they will be hauled into court by the NRA and face expensive and time-consuming litigation. Lawmakers can also use the Second Amendment uncertainty as an excuse to not take action on this issue.

A court decision limiting the reach of the Second Amendment could provide needed momentum to special interest groups focused on gun control and free them to spend much more time and energy fighting the NRA in the halls of the legislature rather than the courts of justice.

Unlike other political institutions, the Supreme Court of the United States is not afraid of the National Rifle Association. The justices don’t have to worry about how that organization uses its vast resources to discredit people who propose any kind of meaningful gun reform.

As Professor Barry Friedman has persuasively argued, the court is also usually concerned with public opinion and rarely strays too far from the general consensus. Right now, that consensus is sympathetic to meaningful gun reform and the issue of gun violence is an emotional one for millions of Americans. Therefore, the time is right for gun-control advocates to run towards, not hide from, the Supreme Court of the United States.